Could a Vermont town clerk lawfully refuse to issue civil union licenses, and what penalties applied if she did?

Plain-English summary

Two weeks before Vermont's civil union law took effect on July 1, 2000, the Town Clerk of Fairfield asked the AG whether she had to issue civil union licenses and what would happen if she did not. Assistant Attorney General Bridget Asay answered that the duty was mandatory. Section 5 of Act 91 said a town clerk "shall issue a civil union license" to any qualified applicant. The word "shall" left no discretion.

A wrongfully refused applicant could seek a Rule 75 court order requiring issuance. The opinion also identified a possible public accommodations action for injunctive relief and damages, with costs and attorney's fees if successful. An applicant could petition the AG's office to seek an injunction or ask the Human Rights Commission to act. Depending on the facts, wrongful refusal could also violate 13 V.S.A. § 3006 or 9 V.S.A. § 4507, though the opinion said no prosecutor had suggested using criminal process at the time.

The opinion recognized that some clerks were resigning over the new law and observed that resignation was within their rights. It then expressed the AG's hope that, as of July 1, the clerks who remained in office would do their statutory duty.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

For town clerks (at the time): The opinion described issuing licenses to qualified applicants as a legal duty. It noted that resignation was within a clerk's rights and expressed hope that clerks who remained would fulfill their duties.

For municipal liability researchers: The opinion said a person wrongfully denied a license could seek legal action against the clerk and/or the town. It did not explain a theory of municipal liability.

For civil rights researchers: The opinion identified a possible Rule 75 order compelling issuance and a possible public accommodations action seeking injunctive relief and damages. It also mentioned potential criminal liability depending on the facts.

Common questions

Did the AG advise that a clerk could ask a deputy to issue the license while she abstained? The opinion did not address delegation or a deputy clerk's authority.

What happened in practice after July 1, 2000?
The opinion did not report what happened after the law took effect.

Were criminal prosecutions ever brought?
The opinion notes that no prosecutor had signaled an interest. The opinion does not record any subsequent prosecution.

Citations and references

Statutes and rules:

• Act 91 (2000), § 5 (mandatory issuance by town clerk)
• Vt. R. Civ. P. 75 (judicial review of agency or officer action)
• 9 V.S.A. §§ 4500-4507 (public accommodations)
• 9 V.S.A. § 4506(a) (private right of action; damages and attorney's fees)
• 9 V.S.A. § 4507 (criminal penalties)
• 13 V.S.A. § 3006 (official misconduct)

Source

• Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
• Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/IO%206-16-00.pdf

Original opinion text

Informal Opinion #2000-3
June 16, 2000
Gerry F. Longway
Clerk
Town of Fairfield
P.O. Box 5
Fairfield, VT 05455
Dear Ms. Longway:
This letter is in response to your inquiry, dated June 14, 2000, regarding your obligation as a town clerk to issue civil union licenses and the potential consequences if you fail to issue these licenses. As your letter appears to acknowledge, as a town clerk you are obligated by law to issue a civil union license to any applicant who meets the legal requirements for obtaining such a license. This obligation is established by Section 5 of Act 91, An Act Relating to Civil Unions, which states in relevant part: "Upon application in a form prescribed by the department, a town clerk shall issue a civil union license in the form prescribed by the department, and shall enter thereon the names of the parties to the proposed civil union, fill out the form as far as practicable and retain a copy in the clerk's office." (Emphasis added.) You have asked whether you or your town would be subject to any fines or penalties for failure to issue civil union licenses. A person who is wrongfully denied a civil union license would be able to pursue legal action against you and/or the town. Rule 75 of the Vermont Rules of Civil Procedure permits judicial review, in superior court, of "[a]ny action or failure or refusal to act by an agency of the state or a political subdivision thereof, including any department, board, commission, or officer . . . ." A person wrongfully denied a civil union license could use this Rule to seek a court order requiring issuance of the license. Wrongful denial of a civil union license may also violate Vermont's public accommodations law, 9 V.S.A. §§ 4500-4507, which, among other things, bars discrimination on the basis of sex or sexual orientation in places of public accommodation. A person wrongfully denied a civil union license could bring an action under 9 V.S.A. § 4506(a) against you or the town seeking injunctive relief as well as compensatory and punitive damages. If successful, the person could also receive an award of costs and attorney's fees. There may be other remedies available to a person who is wrongfully denied a civil union license. For example, such persons may petition this office to file a court action seeking an injunction to compel compliance with state law. In addition, the Human Rights Commission could be asked to initiate an enforcement action under our public accommodations law. You also asked about potential criminal liability. Depending on the circumstances of a specific case, the unlawful failure to issue a civil unions license could be considered a violation of either 13 V.S.A. § 3006 or 9 V.S.A. § 4507. These are offenses that carry potential sanctions of a fine up to $1000 or imprisonment for up to one year. However, we are aware of no one in the prosecutors' community to date who has suggested using the criminal process to address these issues. As a practical matter, the civil remedies are the ones that deserve your closest attention. Recent news reports indicate that some town clerks will resign because of personal or moral objections to the civil unions statute. It is, of course, well within their rights to do so. It is our sincere hope, however, that as of July 1 the town clerks will adhere to their obligations under this new law, as well as their many other statutory duties. I have enclosed copies of the statutes discussed above. I hope this letter is responsive to your concerns. Sincerely, BRIDGET C. ASAY Assistant Attorney General Encs. cc: Deborah L. Markowitz, Secretary of State